US embassy cable - 03GUATEMALA471

UNCLAS SECTION 01 OF 03 GUATEMALA 000471 
 
SIPDIS 
 
SENSITIVE 
 
DEPARTMENT FOR DRL, IO AND WHA/CEN 
 
E.O. 12958: N/A 
TAGS: PREL, PHUM, PGOV, GT 
SUBJECT: VIVANCO MISSION:  STATE OF PLAY 
 
 
1. (SBU)  Summary:  Human Rights Watch Latin America Director 
Jose Miguel Vivanco visited Guatemala February 11-14 to 
consult with the GOG, the Human Rights Ombudsman, and human 
rights leaders about the Ombudsman's proposal to create an 
international Commission to Investigate Clandestine Groups 
(CICIACS).  The Ombudsman and NGO leaders were skeptical of 
any effort to change the existing proposal; the GOG publicly 
supported Vivanco's efforts.  We expect Vivanco to come back 
with a modified proposal in early March.  End Summary. 
 
FM Welcomes CICIACS Proposal With Reservations 
--------------------------------------------- - 
 
2.  (U) On February 14, after meeting with Vivanco to discuss 
the CICIACS proposal the day before, Foreign Minister Edgar 
Gutierrez publicly expressed GOG support for what Vivanco 
will achieve through his consultations.  The FM also called 
the proposal "possible to improve" and gave his own 
"suggestions:"  that the CICIACS be authorized by Congress; 
that its membership be expanded to include representatives of 
Congress, the Public Ministry and the Ombudsman; and that its 
mandate include investigation of crimes implicating private 
security forces and organized crime, in addition to groups 
linked to state agents.  The Ombudsman promptly replied 
publicly that Gutierrez' suggestions added nothing to the 
existing proposal, and human rights leaders said the GOG 
should now propose the creation of a CICIACS to the UN and 
OAS. 
 
Vivanco Upbeat Despite Tough Early Rounds with NGOs 
--------------------------------------------- ------ 
 
3.  (SBU) Jose Miguel Vivanco told the Ambassador, HROff, 
PolCouns, AID officer and PolOff on February 12 that he 
thought he had allayed human rights groups' concerns about 
his role as facilitator of the proposal for a commission to 
investigate clandestine groups and had made some progress as 
follows. 
 
Process: 
 
-- Vivanco acknowledged that his personal prestige and 
credibility is on the line, and said the GOG had not yet 
limited his efforts in any way. 
 
-- Vivanco said he was to meet with the Attorney General 
later that evening, at the AG's insistent request. 
 
-- He would meet with FM Gutierrez on February 13 to get into 
the substance of the proposal for the first time since being 
named as "facilitator" by the GOG. 
 
-- He would leave Guatemala on February 14 and would work on 
a proposal based on what he has discussed during his visit, 
in Washington. 
 
-- He will share with us a draft of what he intends to 
propose, and would appreciate Embassy comment and any 
suggestions. 
 
-- He will return to Guatemala in early March to press the 
GOG to accept key elements of a commission. 
 
Substantive Aspects of a Vivanco Proposal: 
 
-- Vivanco said he is willing to disown any effort which is 
not viable to investigate and lead to criminal prosecution. 
Anything less would be a "show" and not worth the effort. 
 
-- After consulting with Guatemalan constitutional experts, 
he believes that legislation, not just a government decree, 
is necessary to give the commission sufficient authority to 
survive legal challenges, compel testimony through subpoena, 
and, possibly, to engage in plea bargaining to build cases. 
 
-- He believes the key elements of any commission must 
include more prosecutorial expertise at the commissioner 
level, not just in the technical staff ranks.  To do so, he 
has suggested to NGOs that the commissioners be increased 
from three to five, to include three nominated by President 
Portillo from a list of candidates selected by the ombudsman. 
 The additional two commissioners would be Guatemalan or 
foreigners with impeccable prosecutorial expertise, "like 
(Spanish investigative magistrate Baltazar) Garzon," he told 
NGOs. 
 
-- He believes that the commission must be autonomous but 
will also need police participation, and suggests a specially 
vetted group. 
 
-- He has consulted with Peruvian special prosecutor Jose 
Ugaz, who gave him the idea about including police, as long 
as they can be vetted. 
 
4.  (SBU) Without endorsing his specific proposals, the 
Ambassador expressed strong support for Vivanco's efforts to 
put together a proposal for a viable commission.  He confided 
in a short aside to Vivanco that NGOs continue to have 
misgivings about Vivanco's role, and will be particularly 
skeptical to any GOG elements (especially police) working 
with a commission and the proposal to enlarge the commission. 
 PolCouns warned that defining the scope of the investigation 
will be important and that the GOG may attempt to do so in a 
manner that protects itself. 
 
HR Groups Still Have Misgivings About Vivanco 
--------------------------------------------- 
 
5.  (SBU) The Ambassador met with human rights leaders (Helen 
Mack, Frank LaRue, Orlando Blanco, Gustavo Meono, Miguel 
Angel Albizures, and Nery Rodenas) on February 14 to discuss 
their views of Vivanco's facilitation efforts.  The human 
rights leaders expressed continued reservations about 
Vivanco's mission, although LaRue said that they were 
relieved to have clarified that Human Rights Watch stands 
behind Vivanco's efforts.  They then described the following 
points of disagreement with Vivanco's suggestions: 
 
a) Commission Composition:  increasing the commission members 
from 3 to 5 would upset the balance envisioned by the NGOs. 
Instead, they suggest that the Attorney General use his power 
under Article 44 of the Public Ministry's statutes to make an 
agreement with the commission that includes the naming of a 
Special Prosecutor (with commission input) to work with the 
commission, but not be a member of it.  The commission could 
include distinguished prosecutors or jurists named by the 
three member institutions (UN, OAS, GOG), and should also 
hire this expertise for the technical staff level.  LaRue 
added that it would be good if the US could provide staff for 
this purpose.  The commission should not be expanded, which 
would open it to undue GOG manipulation.  Vivanco had 
suggested that the Special Prosecutor be a full member of the 
commission, which they reject. 
 
b) Legal Foundation:  Helen Mack argued that after consulting 
with legal experts, the NGOs propose that the GOG negotiate 
an agreement with the UN and OAS on the creation of the 
commission (including immunities, scope, composition etc.) 
and that the Congress ratify the agreement with a legislative 
accord.  This is how MINUGUA and the Historical Clarification 
Commission were both set up. 
 
c) Initiating Prosecution:  LaRue emphasized that the 
commission must finish its investigation and report before 
pursuing individual cases.  To do the reverse would bog the 
commission down in legal processes and cripple its ability to 
complete a full report. 
 
d) Investigation Period:  Mack indicated that she thought 18 
months would not be enough to complete the investigation, and 
mentioned a 24-month maximum time period as preferable. 
 
6.  (SBU) Meono, who accompanied the Ombudsman on his recent 
visit to Washington and New York, reported that consultations 
there with the UN (including the office of the UN High 
Commissioner for Human Rights), OAS (including someone from 
the Inter-American Commission on Human Rights), and 
Department of State were encouraging.  Helen Mack said that 
MINUGUA has been privately very supportive of the proposal. 
 
7.  (SBU) The Ambassador told the group that he intends to 
meet with the Ombudsman to discuss his views and show Embassy 
support.  He also asked the groups to send us the latest copy 
of their revised proposal as soon possible (Mack later told 
us she will need more internal discussions before they can 
send a new document to us.)  In response to the Ambassador's 
inquiry of how we can help: 
 
--Blanco asked that the USG reinforce the urgency of getting 
a commission started to the GOG.  They expect Vivanco to 
produce a draft by around Feb. 19, and to be back in 
Guatemala in early March.  The GOG should not be allowed to 
delay its acceptance of a proposal past mid-March. 
 
-- Mack suggested that the Ambassador speak to FM Gutierrez 
and encourage the GOG to stick with the 3-member commission 
proposal.  Mack also requested that the Ambassador discuss 
the proposal with Attorney General de Leon and encourage him 
to support the idea of entering an agreement with the 
commission, including the naming of a Special Prosecutor to 
work with the commission.  She suggested the Ambassador 
emphasize that it is his constitutional obligation to support 
the commission.  LaRue suggested the Ambassador also tell the 
AG that the commission is not seeking to displace the MP, but 
to support its work. 
 
Comment 
-------- 
 
8.  (SBU) Vivanco seemed a little taken aback by the 
suspicious reception from his friends in the human rights 
community, commenting that he had been grilled for over an 
hour about any stipend or per diem he might be receiving. 
That suspicion is based on the misgivings about the GOG's 
intentions for the CICIACS proposal more than doubts about 
Vivanco himself.  His exploration of modifications to 
strengthen the proposal, in his view, only worsened those 
doubts.  Gutierrez' public comments were viewed with the same 
skepticism.  Should he return with a substantially modified 
proposal, Vivanco may find the human rights groups a harder 
sell than Portillo.  We will do what we can to facilitate the 
work of the facilitator, once we receive Vivanco's draft. 
HAMILTON